Thursday, December 13, 2012

The Texas Tribune quoted Grits this morning in a story about proposed legislation to merge Texas' Court of Criminal Appeals with the Texas Supreme Court, comporting with both the the national model and the practice in 48 other states. ("Texas and Oklahoma are the only two states with their highest courts divided between civil and criminal jurisdictions.") Toward the end of the article, Maurice Chammah paraphrased Grits' views to say, "Henson argues that lawyers with a civil background would bring a fresh
approach to criminal cases. They would approach forensic science debates
with the standards of civil law, which he says are more strict."

That slightly misstates what I said to him (or at least, what I thought I said), so let me iterate my stance here: Grits does not fantasize that judges with a civil background have any superior ability compared to criminal court judges when it comes to evaluating the science behind forensic disciplines, nor do I think they bring any "fresh approach" to the subject. Rather, I told Mr. Chammah that there would be a benefit from having the same court interpreting the law consistently in both the civil and criminal realms, citing divergent standards on admissible science as one example. In theory, the same US Supreme Court standard - Daubert v. Dow Pharmaceuticals - governs the admission of scientific and expert evidence in both criminal and civil law, I reminded him. But, in large part because of superior resources available to the litigants as well as historical deference to unproven but longstanding disciplines, the standards which have evolved on the civil side tend to be stricter than those applied to criminal-side forensics. (Similarly, it would be useful to have the same courts passing judgment over juvenile and adult criminal law: Right now the Supreme Court handles the juvie side while the Court of Criminal Appeals oversees cases with defendants 17 or older.)

It would be particularly helpful to have a unified court interpreting scientific issues at this historical juncture because of the array of questions facing forensic disciplines in the wake of the 2009 National Academy of Sciences report on the forensic sciences. That historic document, which has been discussedfrequently on Grits, raised questions about the scientific validity of numerous disciplines that were based on subjective comparisons as opposed to "science" as in, supportable by the scientific method. I suggested to him that, as the courts and scientists sort those issues out - a process which could easily take two decades or more! - it would make sense to have the same standards interpreted consistently across the board instead of maintaining separate standards for forensics in criminal cases.

One other quibble: Chammah allows the director of the Texas Supreme Court Historical Society to portray the reason the Court of Criminal Appeals was created as an effort merely to better manage a "backlog." In reality, the Texas Constitution of 1876 was a revanchist document: The fruition of a resurgence of state power by segregationist, mostly ex-Confederate Democrats after a decade under Union-run Reconstruction. It was a first volley on behalf of Jim Crow, featuring most prominently the institution of a poll tax and the creation of separate schools for black children. For context: Following the civil war, military authorities had infamously ousted the chief justice and several sitting associate justices on the Texas Supreme Court, calling them "impediments to reconstruction," and installed replacements sympathetic to "radical Republicanism" (which may be read in the modern context as a euphemism for racial equality). The subsequent creation of a separate court for criminal cases gave Texas Democrats a means to bypass the reconstruction court and what they viewed as its odious precedents, an impression reinforced by the decision to give the CCA's predecessor sole authority to grant writs of habeas corpus, which at the time would have been chiefly considered in the context of the recent imposition of martial law. So if a "backlog" was a fig leaf rationale for creating the court, it is also true that a court unburdened by Reconstruction-era military appointees and their precedents could more easily facilitate the use of criminal law for enforcing the Jim Crow regimen whose foundations were laid in the 1876 Texas Constitution.

The other quotes from me were fairly portrayed, but the paraphrase I thought deserved clarification, and the (revisionist?) history an airing. See the full story, which Grits recommends with the above caveats.

16 comments:

Very interesting; I had wondered, but not pondered deeply, about the two "Supreme" courts in Texas. Actually I was not aware that the Texas SC deals only with civil affairs.BTW, you sent me to the dictionary for "revanchist."

Do you think there would be any criminal lawyers on a unified court? Anytime there's a contested primary for the Supreme Court, candidates can spend quite a bit of money campaigning. I'm not sure there's a single judge on the CCA who's capable of raising enough money to be competitive in a Supreme Court primary. Maybe Myers. Maybe.

Certainly an appellate prosecutor would have a difficult time being competitive with a Big Law partner in terms of fundraising. Perhaps there are a few defense lawyers who could raise enough, but not many. An elected DA of a big city might be able to raise enough, but, generally, they're not that interested in appellate practice.

My gut tells me that the judges on a unified Supreme Court would all be civil lawyers. Each would hire a dedicated staff attorney to write the criminal opinions, because, frankly, that's not something they really care about. I suspect they would be more Tuff on Crime than the current court, even, as they would be leery of rulings that could be demagogued in a contested primary. The last thing they'd want to do is trash their post-court employment prospects by being tagged as "that guy that let the kiddy-rapist out of prison and then lost re-election."

7:10, a fair share of criminal lawyers make it onto the intermediate appellate courts, which have dual jurisdiction. IMO the Kellers, et. al., of the court could raise more if they chose to (she comes from a well-heeled Dallas family, after all) and they basically rise to the level of the competition, raising only what's necessary. It's not that they couldn't raise more, but they don't have to in order to be competitive. I don't think it'd be completely one-sided, but do agree over time the money in the races could tilt it toward the civil side. OTOH, the oppo researchers, I'm certain, would keep the criminal side relevant in their races, just out of habit.

8:59, any quibble that finds common ground between Grits, Bill Clements and Richard Raymond at least merits a blog discussion, particularly when there's been legislation filed on it. The Court of Criminal Appeals teeters constantly on the brink of being a national laughingstock. At some point, it becomes time to cut bait instead of fish.

I agree with Anon. 7:10. The CCA regularly busts courts of appeals' opinions on basic legal concepts, for instance, legal sufficiency of the evidence. And during oral argument, with certain panels, a criminal lawyer has to patiently explain basic appellate concepts to the civil lawyer justices. Criminal appellate law is a specialty, but there is an institutional prejudice toward it. We all know that this idea has been bandied about for 20 years. I think to combine the two top courts would be insane.

As President Clinton says, "Do the math." Out of the several justices on the Third Court of Appeals, only two have any criminal law experience: Justice Puryear (state) and Justice Henson (federal). Texas Supreme Court? None.

Hey Grits, this is another great educational GFB Post worthy of follow-ups & link backs ever time you mention either of these two courts. Please consider updating to clarify if there are any checks & balances in place to monitor / record their conduct and duties performed.

Speaking of these 'two' courts' - comparing the individual reason(s) for their creation & responsibilities to their actual work product histories, which would be considered as the 'Fakest'? Need it for my Fake-Ass List of 2012, a compilation of 'Fakism' in the great state of confusion aka: Texas. Thanks.

I would expect the tendency towards re-election to exceed that towards justice. A problem is not as much the separation as the oversight, i.e., can someone appeal efficiently---or only if they are rich? There need to be courts who can oversee others, for sure. At some point as those top courts became complete sellout to remain seated, it just all went to H. There's no farmer to run off the foxes, who've eaten the chickens. State supremes rule, since the US supremes are a clown show and will not hear your case, unless you get it hard and loud in the media, first---but the media is also entirely biased.

I have always been intrigued by the idea of appointed appellate justices, Given that most people don't know whom they are voting for, but the questioremains: who appoints them? The civil State bar wonks? The large civil firms? Texas Appleseed, working with the TX Sup Ct justices & Office of Court Administration? Chairman Whitmire? Chairman Ellis? I doubt if the TDCLA or TCDAA would be legitimately included in the process. Just my opinion. And Grits, speaking as a former criminal appellate specialist on both the defense & state sides, , I think only one Third Court of Appeals justice with state criminal experience is not enough, given the volume of cases moving through the Third Court.

I would keep the Court of Criminal Appeals but amend the Constitution to change the qualifications. The change I would make would be a requirement that a CCA Justice have at least 5 years of experience as a Prosecutor and at least 5 years of experience as a Defense Lawyer.

So, with that said (just above) they are both simply kangaroo courts' (simply job creation / security for aging Rs & Ds). And when any court ignores the Law(s), they become Fake Courts. When the citizens' of a state (any state, even the ones in states of confusion) know this and do absolutely nothing, you get what you deserve. The Kingdom of Texas -a world-wide joke.

Next, we'll be hearing about the inception of the "Almighty Court of Courts" where business is conducted in the the back seats of patrol cars. Thanks.

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